Germany: The AGG and the abuse of rights - Update: Federal Labour Court confirms decision of Hamm Higher Labour Court

The Federal Labour Court (BAG) recently confirmed a decision by the Hamm Higher Labour Court (LAG Hamm), according to which a defendant employer effectively raised the objection of abuse of rights against a job applicant. The applicant had only applied to obtain formal applicant status and be able to assert claims for compensation.

The BAG thus continues to adhere to its previous line, according to which such an applicant is not entitled to compensation for gender discrimination pursuant to Section 15 (2) of the General Act on Equal Treatment (AGG).

(BAG, judgement of 19.09.2024 – 8 AZR 21/24)

Facts and legal assessment

The male plaintiff, who was trained as an industrial clerk, applied to the defendant, an operator of an engineering company, for a position as a female "office clerk/secretary" („Bürokauffrau/Sekretärin“.). The defendant did not respond to the plaintiff's application and filled the position with a woman.

The LAG Hamm already ruled in favour of the defendant in the previous instance. It attached particular importance to the circumstances that the plaintiff:

• had demonstrably applied exclusively for jobs that were not formulated in a gender-neutral way;
• the wording of the initial application letter was already provoking a rejection due to his gender;
• lived 170 km away from the potential place of work;
• at the time of application was completing distance studies to become a business lawyer on a full-time basis.

According to the findings of the LAG Hamm, the plaintiff also systematically and purposefully geared his behaviour towards establishing a "business model", i.e., generating income. He had applied for a large number of advertised positions as a female "secretary" and filed eleven lawsuits with the Berlin Labour Court alone within 15 months on the basis of alleged discrimination on the grounds of gender.

Against the background of the above-mentioned aspects and the recognisable intention of the plaintiff, the LAG Hamm found that both the objective and subjective elements required for abuse of rights, which are also required by the ECJ, were present.

The BAG agreed with this assessment. It also found that the plaintiff's alleged motives of testing his "market value" as a worker and deterring employers from gender-based discrimination were not sufficient to deny abuse of rights.

Conclusion

The hoped-for clear positioning of the BAG against the further developed "AGG hopping business model" has been achieved. This is also to be welcomed in terms of legal policy. "AGG hoppers" and their improper exploitation of the equally important and protection-worthy background of the AGG are clearly rejected.

Irrespective of this, employers are well-advised to review their own advertising process and ensure that job adverts comply with the current legal requirements, taking into account case law.

This applies in particular against the background of the actual protective purpose of the AGG, but also in view of such cases of abuse and the risk of lengthy legal proceedings. In this respect, it should be emphasised that the defendant in the case now decided was fortunate that the plaintiff had provided a large number of indications of his abusive behaviour. Comparably weighty individual circumstances are likely to be necessary to successfully defend against such claims. The fact alone that a large number of legal proceedings have been conducted following unsuccessful applications is still not sufficient in accordance with the case law of the highest courts. In this respect, it will depend on the individual circumstances of each case.